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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 07-TC-502
Sunstar Travel and Tours, Inc. ) NAL/Acct. No. 200832170065
Apparent Liability for Forfeiture ) FRN: 0017724774
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 26, 2008 Released: August 28, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Sunstar Travel and Tours, Inc. ("Sunstar") apparently willfully
or repeatedly violated section 227 of the Communications Act of 1934,
as amended ("Act"), and the Commission's related rules and orders, by
delivering at least twenty-nine unsolicited advertisements to the
telephone facsimile machines of at least twenty-five consumers. Based
on the facts and circumstances surrounding these apparent violations,
we find that Sunstar is apparently liable for a forfeiture in the
amount of $136,000.
II. BACKGROUND
2. Section 227(b)(1)(C) of the Act makes it "unlawful for any person
within the United States, or any person outside the United States if
the recipient is within the United States . . . to use any telephone
facsimile machine, computer, or other device to send, to a telephone
facsimile machine, an unsolicited advertisement." The term
"unsolicited advertisement" is defined in the Act and the Commission's
rules as "any material advertising the commercial availability or
quality of any property, goods, or services which is transmitted to
any person without that person's prior express invitation or
permission in writing or otherwise." Under the Commission's rules, an
"established business relationship" exception permits a party to
deliver a message to a consumer if the sender has an established
business relationship with the recipient and the sender obtained the
number of the facsimile machine through the voluntary communication by
the recipient, directly to the sender, within the context of the
established business relationship, or through a directory,
advertisement, or a site on the Internet to which the recipient
voluntarily agreed to make available its facsimile number for public
distribution.
3. On May 17, 2007, in response to one or more consumer complaints
alleging that Sunstar had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Sunstar, pursuant
to section 503(b)(5) of the Act. The Bureau cited Sunstar for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for vacation packages to a telephone
facsimile machine, in violation of section 227 of the Act and the
Commission's related rules and orders. The citation warned Sunstar
that subsequent violations could result in the imposition of monetary
forfeitures of up to $11,000 per violation, and included a copy of the
consumer complaints that formed the basis of the citation. The
citation informed Sunstar that within 30 days of the date of the
citation, it could either request an interview with Commission staff,
or could provide a written statement responding to the citation.
Sunstar did not request an interview or otherwise respond to the
citation.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received additional
consumer complaints indicating that Sunstar continued to engage in
such conduct after receiving the citation. We base our action here
specifically on the complaints filed by twenty-five consumers
establishing that Sunstar continued to send twenty-nine unsolicited
advertisements to telephone facsimile machines after the date of the
citation.
5. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture of up to $11,000 for each violation of the Act or of any
rule, regulation, or order issued by the Commission under the Act by a
non-common carrier or other entity not specifically designated in
section 503 of the Act. In exercising such authority, we are to take
into account "the nature, circumstances, extent, and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require."
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. We find that Sunstar apparently violated section 227 of the Act and
the Commission's related rules and orders by using a telephone
facsimile machine, computer, or other device to send at least
twenty-nine unsolicited advertisements to the twenty-five consumers
identified in the Appendix. This NAL is based on evidence that
twenty-five consumers received unsolicited fax advertisements from
Sunstar after the Bureau's citation. The facsimile transmissions
advertised vacations. Further, according to the complaints, the
consumers neither had an established business relationship with
Sunstar nor gave Sunstar permission to send the facsimile
transmissions. The faxes at issue here therefore fall within the
definition of an "unsolicited advertisement." Based on the entire
record, including the consumer complaints, we conclude that Sunstar
apparently violated section 227 of the Act and the Commission's
related rules and orders by sending twenty-nine unsolicited
advertisements to twenty-five consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Sunstar is apparently liable for a forfeiture in the
amount of $136,000. Although the Commission's Forfeiture Policy
Statement does not establish a base forfeiture amount for violating
the prohibition against using a telephone facsimile machine to send
unsolicited advertisements, the Commission has previously considered
$4,500 per unsolicited fax advertisement to be an appropriate base
amount. We apply that base amount to each of twenty-eight of the
apparent violations. In addition, where the consumer requests the
company to stop sending facsimile messages, and the company continues
to send them, the Commission has previously considered $10,000 per
unsolicited fax advertisement the appropriate forfeiture for such
egregious violations. Here, one consumer specifically requested that
Sunstar cease sending facsimiles. Notwithstanding this request,
Sunstar sent one additional facsimile to this consumer. We therefore
apply the $10,000 amount to the one apparent violation. Thus, a total
forfeiture of $136,000 is proposed. Sunstar will have the opportunity
to submit evidence and arguments in response to this NAL to show that
no forfeiture should be imposed or that some lesser amount should be
assessed.
IV. CONCLUSION AND ORDERING CLAUSES
8. We have determined that Sunstar Travel and Tours, Inc. apparently
violated section 227 of the Act and the Commission's related rules and
orders by using a telephone facsimile machine, computer, or other
device to send at least twenty-nine unsolicited advertisements to the
twenty-five consumers identified in the Appendix. We have further
determined that Sunstar Travel and Tours, Inc. is apparently liable
for a forfeiture in the amount of $136,000.
9. Accordingly, IT IS ORDERED, Accordingly, IT IS ORDERED, pursuant to
section 503(b) of the Act, 47 U.S.C. S: 503(b), and section 1.80 of
the Rules, 47 C.F.R. S: 1.80, that Sunstar Travel and Tours, Inc is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of $136,000 for willful or repeated violations of section
64.1200(c)(2) of the Commission's rules, 47 C.F.R. S: 64.1200(c)(2),
and the related orders described in the paragraphs above.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Sunstar Travel and
Tours, Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
11. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). SOS Marketing will also send
electronic notification on the date said payment is made to
Johnny.drake@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, SW, Washington, DC 20554, and must
include the NAL/Acct. No. referenced in the caption.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt
Requested to Sunstar Travel and Tours, Inc., Attention: Joseph Hanna,
President, 1123 E. Altamonte Dr., Altamonte Springs, FL 32701.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant sent facsimile solicitations Violation Date(s)
Thomas Merz 9/06/2007
Robert Temoyan, Bebirian & Temoyan, Inc. 9/25/2007
Warren Davis, Davis Associates, Inc. 9/25/2007
P. Romano 10/02/2007
Eugene Groves 9/06/2007; 9/25/2007;
10/03/2007; 10/03/2007
Jean Fortune, Hy-Tech Construction 10/05/2007
John McGraw, HNFS 10/05/2007
Jennifer Harris, University Association in 10/05/2007
Psychology
Mike Flint, NOVA TECH International LLC 10/11/2007
Michael Ankenbauer, DATARACE 10/11/2007
Judy McComb 10/09/2007
Christi Woodend 10/12/2007
Walter Alexander 10/11/2007
Mark Lebovitz 10/15/2007
Troy Sanchez 10/15/2007
Nanci Lamborn, Southern Insurance 10/15/2007
Underwriters
Leigh Plimmer 10/17/2007
Carolyn Weiner 9/20/2007; 10/16/2007
Dave Rohn 10/17/2007
George Wheeler, Wheeler Initiatives 10/18/2007
Paul Randle, Paul A. Randle & Associates 10/22/2007
John Brooks 10/22/2007
Chenda Fruchter 10/23/2007
Louie Mounce, Southeastern Graded Milk 10/15/2007
Producers
Complainant received facsimile advertisements Violation Date(s)
after requesting no more be sent
Kathleen Logan 10/02/2007
See 47 U.S.C. S: 503(b)(1). The Commission has the authority under this
section of the Act to assess a forfeiture against any person who has
"willfully or repeatedly failed to comply with any of the provisions of
this Act or of any rule, regulation, or order issued by the Commission
under this Act ...." See also 47 U.S.C. S: 503(b)(5) (stating that the
Commission has the authority under this section of the Act to assess a
forfeiture penalty against any person who does not hold a license, permit,
certificate or other authorization issued by the Commission or an
applicant for any of those listed instrumentalities so long as such person
(A) is first issued a citation of the violation charged; (B) is given a
reasonable opportunity for a personal interview with an official of the
Commission, at the field office of the Commission nearest to the person's
place of residence; and (C) subsequently engages in conduct of the type
described in the citation).
According to publicly available information, Sunstar is also doing
business as SS Travel and Tours, S-Star Travel and Tour, Vacation
Clearinghouse, Vacation Clearance Center, and Travel Clearance Center.
Therefore, all references in this NAL to "Sunstar" encompass Sunstar as
well as SS Travel and Tours, S-Star Travel and Tour, Vacation
Clearinghouse, Vacation Clearance Center, and Travel Clearance Center.
Sunstar has offices at 1123 E. Altamonte Dr., Altamonte Springs, FL 32701.
Joseph Hanna, President, is listed as the contact person for Sunstar.
Accordingly, all references in this NAL to "Sunstar" also encompass the
foregoing individual and all other principals and officers of this entity
or entities, as well as the corporate entity or entities.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3); see also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd
3787 (2006).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(5).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-502 issued to
Sunstar on May 17, 2007.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to persons who do not hold a license, permit, certificate or other
authorization issued by the Commission or an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Commission staff mailed the citation to Sunstar Travel and Tours, Inc.,
Attn: Joseph Hanna, President, 1123 E. Altamonte Dr., Altamonte Springs,
FL 32701. See n.2, supra.
See Appendix for a listing of the consumer complaints against Sunstar
requesting Commission action.
Following the issuance of this citation, the Commission continued to
receive complaints from multiple consumers alleging that Sunstar faxed
unsolicited advertisements to them. These complaints, received after the
Commission's citation, resulted in the issuance of a Notice of Apparent
Liability for Forfeiture against Sunstar in the amount of $169,500.
Sunstar Travel and Tours, Inc., Notice of Apparent Liability for
Forfeiture, FCC 08-132, released May 28, 2008. We note that evidence of
additional instances of unlawful conduct by Sunstar may form the basis of
subsequent enforcement action.
Section 503(b)(2)(C) provides for forfeitures up to $10,000 for each
violation in cases not covered by subparagraph (A) or (B), which address
forfeitures for violations by licensees and common carriers, among others.
See 47 U.S.C. S: 503(b). In accordance with the inflation adjustment
requirements contained in the Debt Collection Improvement Act of 1996,
Pub. L. 104-134, Sec. 31001, 110 Stat. 1321, the Commission implemented an
increase of the maximum statutory forfeiture under section 503(b)(2)(C) to
$11,000. See 47 C.F.R. S:1.80(b)(3); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000); see also Amendment of Section 1.80(b)
of the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 19 FCC Rcd 10945 (2004) (amendment of section 1.80(b) to
reflect inflation left the forfeiture maximum for this type of violator at
$11,000); Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 08-154, rel.
June 13, 2008 (when effective, forfeiture maximum for this type of
violator increased to $16,000).
47 U.S.C. S: 503(b)(2)(D); The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Report and Order, 12 FCC Rcd 17087, 17100-01 para. 27 (1997)
(Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).
See, e.g., complaint dated September 6, 2007, from Thomas Merz (stating
that he has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, and never gave permission
for the company to send the fax). The complainants involved in this action
are listed in the Appendix.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13) (definition
previously at S: 64.1200(f)(10)).
See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC
Rcd 1805 (1999); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843
(2000); see also US Notary, Inc., Notice of Apparent Liability for
Forfeiture, 15 Rcd 16999 (2000); US Notary, Inc., Forfeiture Order, 16 FCC
Rcd 18398 (2001); Tri-Star Marketing, Inc., Notice of Apparent Liability
For Forfeiture, 15 FCC Rcd 11295 (2000); Tri-Star Marketing, Inc.,
Forfeiture Order, 15 FCC Rcd 23198 (2000).
See Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
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Federal Communications Commission FCC 08-198
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Federal Communications Commission FCC 08-198